Jack - Episode 6 - Mere Weeks Away?

Episode Date: January 8, 2023

Allison and Andy discuss the latest developments in Judge Beryl Howell’s courtroom; plus they’re joined by Zoe Tillman to discuss her reporting in Bloomberg saying that indictments could be mere weeks away; and more.Do you have questions? Send them to [e-mail] the Podcast on Apple Podcasts:https://apple.co/3BoVRhNFollow our Guest:Zoe Tillmanhttps://twitter.com/ZoeTillmanCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AG on Twitter:Dr. Allison Gill https://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on Twitter, but you can buy his book The Threathttps://www.amazon.com/Threat-Protects-America-Terror-Trump-ebook/dp/B07HFMYQPGWe would like to know more about our listeners. Please participate in this brief surveyhttp://survey.podtrac.com/start-survey.aspx?pubid=BffJOlI7qQcF&ver=shortThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and abovehttps://dailybeans.supercast.techOrhttps://patreon.com/thedailybeans

When is the last time you didn't fill enough? If you relate to that question, check out the podcast authentically us. This is where we talk about what it means to be authentic and everything that you do and every space that you occupy. Join us on this journey. I signed in order appointing Jack Smith. And nobody knows you. And those who say, Jack is a finesse. Mr. Smith is a veteran career prosecutor.

What law have I written? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is? Send me to jail. Hello, and welcome to episode six of Jack. It is Sunday, January 8th, and we have a lot of special counsel news to discuss. I'm Andrew McCabe. And I am Alison Gill, your right Andrew. The week started out pretty slow, but it picked up at the end. At the end of the week,

we got information about new troves of documents received by special counsel pursuant to those subpoenas, that flurry of subpoenas we talked about, and then two episodes ago. We got an update on the speed of the probes from Bloomberg reporter Zoe Tillman, who we will be talking to later in the show about that, along with two new prosecutors that have been brought on into the fray by Jack Smith. So we've got a lot to cover. That is right. And we have some new information about that contempt motion filed by the special counsel to compel the office of Donald Trump to name a records administrator and a test that all documents bearing classified markings have been handed over. So more to come on that. And AG, I'm happy to say we have kind of

a new feature that we're adding to the show this week. We want to open up the floodgates and invite you to send your questions in to an email address. It's hello at mullershearote.com. And give us any of your questions about what's happening with the special counsel. If there's like legal issues, you want some more clarity on or you're not, you're seeing some of the conflicting reporting that we're always sorting through, feel free to send those questions on. And we will start every show

with answering one of your questions right here in the podcast. And we're gonna start today with a question from Brent. Brent writes in, much of Trump's criminal behavior can be categorized as fraud or obstruction. He is very predictable. Actions taken to hold Trump responsible in office

were founded on his efforts to gain and hold office through fraud and obstruction. This was the most conclusive feature of Mueller's investigation and the bulk of both impeachment cases. And here comes the question, can this demonstrated pattern of criminality materially strengthen any future legal case against him, or is it just useful impression forming data for a jury?

Well Brent, that is a great question. It opens up really kind of thorny area that prosecutors have to deal with in most criminal prosecutions. And that is the question of information of prior bad acts. Can you bring that stuff in? Can you put it in front of the jury and use it as evidence against someone? So there's really two rules that we have to follow

to answer that question in any given case. The first is whether you can bring in a past conviction that a defendant has into a current prosecution as a way of, you know, essentially proving the case against them. Well, generally you cannot. The only time that you can do that under federal little bad evidence 609 is you can use past convictions to impeach a defendant who testifies against himself if that conviction was for a felony and it involved a fraud offense. So if the defendant takes the stand in his own defense, you can essentially use past convictions

to undermine the jury's perception of their truth of veracity if they've been convicted of felonies and those felonies are relevant to truth telling sort of things. So that's clearly doesn't apply here because we don't have, Donald Trump doesn't have any prior convictions that we're aware of in the Mueller report certainly didn't convict Donald Trump of anything. The next rule is 404b which basically says character evidence, evidence of other crimes or wrongs or prior, prior wrongs or prior bad acts. And you cannot use that information to prove a person's character or in order to show that on a particular occasion, the person acted in accordance with that character. So like you can't bring in that stuff to say like, Hey, he's a bad guy. He did bad stuff before and he probably did it here too. The only time you can use it is to prove motive, opportunity, intent, preparation, knowledge,

that sort of thing. So if you had prior bad acts that tended to show that in this, in the activity that the person is currently charged with, that these prior ad acts show that they had motive or they had the opportunity or the intent or conducted planning to commit this stuff, you could possibly get that information in front of the jury. Now, it's hard. You got, there's all kinds of notice requirements and things like that. These are issues that are fought viciously between the prosecution and the defense and trying to exclude that stuff. So bottom line, I think it's highly unlikely in this case

that any of the stuff that came up in the Mueller report would be entered as evidence in front of the jury in any potential prosecutions from either the Mar-a-Lago documents case or the Jan 6 related stuff, but stay tuned and we'll find out as things go forward. Or even obstruction of justice, unless that somehow related to the same set of bad acts. I mean, if the DOJ wants to introduce it into evidence, they would file that.

And then I'm assuming the Trump lawyers would file a motion and eliminate to exclude it. They would. They would fight like hell because. Duke it out in court. Yeah. And they would probably win because of the substance, the fact pattern that gives rise to whatever he could potentially be charged with now is so different and seemingly so unrelated

to anything that the Mueller team looked at. It's hard to see that there would be enough nexus there to get any of that information in. Yeah. Well, thank you, Brent, for the question. Again, if you have questions you want to send to us about special counsel or anything involved in anything you hear in the podcast, you can send it to hello at mullersheywrote.com

Put Jack in the subject line. So we know you're talking about this podcast and we will answer your question at the front of the show. Thanks Andrew for that. Our first story today is from the Washington Post. They reported that Jack Smith is back in the United States and actually has been quote for some time. I'm not sure what that means. I love that. It's so deliberately vague. Sometime.

I could be here five minutes ago or he's been here for six weeks. Who knows? Yes, for some time. Garland appointed him on November, I think it was November 18th. And he was in, he was, you know, overseas. He had been in a biking accident and was healing before he came back, but he was working remotely. I think the really interesting thing here, A.G. is how quiet his return was.

I mean, the fact that they, and I'm sure that that was deliberate, right? He is in a position now where he's going to attract so much negative attention, so much scrutiny. He's already been scrutiny on his wife and her career and her, you know, political opinions, none of which have anything to do with the work that he's doing as special counsel. They are, I think, are trying to help Jack Smith maintain as low a profile as possible. Like that was not possible with Robert Mueller. Like he's a very easily recognizable figure at least to Washington, Wanks like like us. But Jack Smith could probably fly beneath the radar. Maybe if he cuts that beard, that would be helpful. But I think DOJ was not going to announce, oh, look, he's back because they wanted him

to be able to come in quietly, you know, and kind of stay off the press's radar and the critics' radar as much as possible. Dig in, do your work, and that's it. Yeah, and I wonder where his office is. Like, it's just very interesting that, yeah, it was super sneak. Something else that the Washington Post goes over here is, and this ties into something that Chuck Rosenberg was talking to us about. The last time he was here, Garland appointed him as I said in November 18th, but did not give him the full authority of an attorney general. He gave him the full authority of a US attorney, which is typical for special counsel.

That's what they gave to Mueller. And then Mueller in turn gave his team the power and authority of US attorneys. I call them mini-mullers. But, you know, it could, what Chuck Rosenberg was saying was that there has been an example in history where a special counsel has been appointed and was given the full authority of an attorney general, which means he would not, you know, Garland would not have the final say anymore. Now, Garland has said, and I take him at his word, he has said that he will take whatever

recommendations Jack Smith makes. But Chuck Rosenberg was kind of asking in a in an op-ed that he wrote, why then not give him full authority of an attorney general? So he is completely independent, which is kind of a little cool twist of the law since the independent council regulations expired. Yeah. And talk a little bit about that. I think it happened in 2003 as Chuck was saying. That's right. So it's 2003 and there is a there is many of you will remember this. Valerie Plame, her identity as a status as a CIA case officer, which was a classified fact, was exposed to the press. This was all in the context of the investigation of

the investigation of Iraq's use or attempted acquisition of nuclear material and all this other stuff. But in any case, Valerie playing with CIA officer, she had been working overseas under State Department cover. That cover was blown intentionally by somebody leaking it to the press. So Patrick Fitzgerald, a legendary prosecutor from the Southern District of New York. And I think who was serving at that time as US Attorney in Chicago, he was brought in at special counsel. Now, at the time, John Ashcroft, who was AG, had recused himself from the matter because

of potential conflicts. And so his deputy attorney general, Jim Comey, was the acting attorney general over this inquiry. So Comey brings in Pat Fitzgerald, who, full disclosure, was a very good friend. Still is good friend and associate of Jim Comey's, they had worked a lot of cases together in Southern District. He brings in Fitzgerald. And in his kind of memo to Fitzgerald, giving him the authority of special counsel, he actually delegates the powers that had been delegated to him by Ashcroft. He passes them right over to Fitzgerald. So Fitzgerald had the authority of the attorney general with respect to that inquiry, which meant that when he came to his

conclusion, he didn't have to go to the AG for approval to indict someone or to decline to indict someone. He was the final decision maker, the final judgment on whatever came from that effort. And we all know that, of course, Fitzgerald decided to bring charges against Scooter Libby. Scooter Libby was ultimately convicted for being involved in that leak to the press and then I think was. Did somebody pardon Scooter Libby? Yeah, I think that might have happened when the last guy did that. So another interesting pardon of somebody that, yeah, somebody that was convicted. That's, yeah, interesting. Yeah, there you go. But so it can be done. That's how Komi decided to do it.

And Chuck's position is that would have maybe been a helpful thing to do here. I think probably the argument on the other side, it's possible. I don't know this for a fact I wasn't at the table, but I would guess that Garland was concerned maybe that delegating his own authority to Jack Smith might appear almost like he wasn't doing his job or wasn't exercising the judgment and the discretion of the attorney general in the way the AG is supposed to over

all federal criminal prosecutions. And so he opted to keep the final word, but has already, as you pointed out, said he's going to accept whatever recommendation he's given. So it's a little bit of a formality, right? Yeah. and I think that might be it too, because he did take a little bit of criticism from some folks who said, oh, you're punting this. You don't want to do it yourself. You don't have cojones, I guess, to do this yourself. And so I think had he given a full, you know, his full authority over to the independent council, I think those, those, that criticism may have been louder. Yeah, but now that we've made the argument for supporting what he did, let me go back on the other side.

And there is a very recent example of the danger there. And it was basically what Loretta Lynch did towards the end of the Hillary Clinton email investigation when there was this notorious meeting, a chance meeting as we're told, but nevertheless, an uncomfortable meeting between Loretta Lynch and Bill Clinton, I think on the tarmac in Arizona or something, and one of the two of theirs planes or whatever, when that came out, people were very concerned that she'd be meeting with a husband of this subject of a high-profile investigation, Hillary Clinton. And in the kind of storm of controversy, in the aftermath of that, a lot of people expected Lynch to officially recuse

from overseeing the investigation. She opted not to do that. She retained her status as Attorney General and charge of that investigation, but said that she would accept whatever recommendation the FBI gave her. I don't think she was fully planning on us giving her such a public and notoriously controversial recommendation, but nevertheless,

that's the way that that one landed. I think a lot of people rightly criticize her for not recusing in that instance, but you know, it's a history. We can argue about it forever. in that instance, but you know, it's history. We can argue about it forever. Yeah, and then maintaining oversight of that, and then not taking the job of making the decision as to whether or not to announce the investigation and leaving that to Jim Comey. That's right, that's right.

Just say that. Second story up from Zachary Cohen at CNN, Jack Smith has received a trove of documents pursuant to the flurry of subpoenas. We spoke about a couple of episodes ago, and they particularly were able to review some of these documents from Wisconsin and Clark County, Nevada. They include communications between the officials in those states, election officials, and Trump lawyers, not Trump himself, but Trump lawyers involved in the fraudulent electors scheme, including lawyers like James Troopers.

The Clark County Nevada documents show that Trump allies demanded information about election workers tasked with counting votes, and we know that they are, they famously went after some election workers, especially down in Georgia with Shem Moss and Ruby Freeman. And he's continuing this week to go after them. The registrar sought to delay that request of election worker and counting information because they were concerned about the election worker's safety as they should have been. Other documents that were reviewed here by CNN show the Trump Lawyers alleging voter fraud allegations that Clark County officials just dismissed as untrue because they were. And Trump Lawyers

also sought photos of voter signatures. They sought the names of voters who were on the elections boards. And the political party affiliation of the voters who were on the election board, but Clark County would not provide that information until after the canvassing until after the vote was certified again for very good reasons. Yeah. I mean, this is the, this is the nitty gritty of the pressure campaign, right? The pressure campaign on state electoral officials, the pressure campaign to generate these fake slates of electors, all that stuff was in, you know, we're really going to see how it happened on the ground. And not surprising, we're seeing this,

this, uh, trove of documents now, we saw the subpoena is going out a couple weeks ago. We knew then that there were some early indications that they were, uh, the folks who'd been subpoena have had every intention of conducting legitimate searches and providing whatever they had. So they're clearly, uh, staying well within the bounds of the legal requirements of the subpoena. This I think is a really ripe area for potential charges for all kinds of folks, some of whom maybe we're not really familiar with. This the elect the fake electors scheme, which was essentially an effort to bring in a bunch of Republican electors and throw the state certification to these people and then submit that information

to the National Archives to have the states certified for Trump instead of Biden who'd actually won the states. That's a really meaty, like tangible fraud in some circumstances. So that's one that I think the investigators and the prosecutors have a lot to work with. And these communications will help them in exposing like who was putting the pressure on what were they saying? And as we always talk about getting to that critical element of proving intent, what were what was the intent behind the pressure to pull this thing off?

Yeah, and Andrew in the next story that you're gonna talk about, there is some actual direct evidence that has now been released to the public that shows it's not just these fraudulent electors and Trump's lawyers, but Trump himself directly was involved. And that evidence I thought was pretty,

woo, damning, to go all the way up to the top like that. Can you talk a little bit about what, uh, this is a, uh, another story that Zoe Tillman was reporting in Bloomberg? Yeah. So this comes in the, on the heels of these massive releases of transcripts from the January 6th committee. And the one we're talking about today is the transcript of the interview of Rona McDaniel, who is of course the head of the Republican Party. She gave an interview to the Jan six committee in which we'd heard a little bit about this during the hearings that she related to the committee that she received a phone call directly from President Trump in which President Trump basically said, Hey, I need you to do something for we need your help. We need you to do something here.

I'm going to let my friend tell you what it is. And then he hands the phone over to John Eastman, who basically lays out a part of this fraudulent elector scheme. Eastman goes on to ask McDaniel to could you reach out to the States and help us get names of possible electors and things like that to just helping to kind of like I said facilitate this at the boots on the ground level. So she did tell about that phone call. She also told the committee we now know about her follow up work essentially she spoke to others. She spoke to lawyers from the campaign because she seems to do a bit of a pivot here. She gets the request from Trump and Eastman and then she kind of like swings it back around

to I think it's Justin Clark, the attorney, one of the attorneys for the campaign saying like, oh, this was really more of a campaign task. And so she kind of gets them involved as well. She gets a response back and then has a second conversation with Trump in which she says like, Hey, I took care of it. All of this is significant because it puts Trump right in the middle of this of this scheme of this fraud of the basic effort to generate these fraudulent electors. He cannot say now in his own defense,

if he's ever charged and related to this activity. He can't say, I didn't understand it, or I didn't know how it worked, or I didn't know what it was for. I was just introducing John Tyrona, like that just is not gonna hold up. He's on the phone twice with the same person who's been tasked with executing a part of this scheme.

It really puts him right in the soup. Yeah. And now I'm starting to think, and we're going to talk about this a little bit later in the show because there's been a flurry of appeals for privilege issues, probably going on behind closed doors with Judge Barrel, Helen, the Grand jury. But if, you know, if the DOJ is trying to get those call records from Ron or Omni-McDaniel, and Trump is trying to sue to block that.

This is all speculative. That would be one of, that could be one of these privilege fights that we're looking at because you would want, wouldn't you want the, if, if, if her testimony is that I called him, he, they called me and then I called him on this day and to report, wouldn't you want to have those call records to bolster her testimony as proof that she did speak to him that day? Absolutely. Yeah. That's the way you authenticate that evidence, right? You would enter in the call records that show that she did. Actually, she was on the phone, at least with a number that's assigned to the White House, all that

would bolster her credibility. It's hard. Well, I was going to say it's hard to see what privilege would be invoked here, but this cloud invokes a lot of creative privileges. I'm sure they'll come up with something, but it's clearly not attorney client privilege because McDonald's involved in the communications. And, you know, so when you, if you're talking to your lawyer and you bring somebody else in who that lawyer does not represent, you lose the attorney client privilege over those communications, hard to see how it would be executive privilege. There's always the

crime fraud exception that if there was a privilege would then would have the effect of erasing it for these communications. If there's, if there's, you know, found to have been involved in the commission of a fraud, which seems fairly likely. So that's, that would be an, I'd love to be a fly in the wall and that hearing, but it could very well be a fight. Well, yeah, there's, there's no privilege here, but that doesn't stop Trump from suing,

saying there's exactly privilege and having it have to roll through court really fast for them to say, because every single witness that they're going to try to get information and comes from, he's going to try to block and he's going to sue and knowing that he doesn't have that privilege and he'll eventually lose, but it does drag the thing out. And it's one of the things that makes these very complex cases take a lot of time and energy and resources. And Delay is his friend.

Yeah. Time is not on the side of the prosecutors here. As we get closer and closer to an election in 2024, that clock ticks louder and louder. And so, yeah, Delay is a very effective strategy for the Trump team. Yeah. And finally, something that really stood out to me in this reporting is that Zoe Tillman says, according to people familiar with the matter, Jack Smith is set to make critical decisions about whether to bring charges possibly in a matter of weeks. And that really stood

out to me. And we're going to ask her a little bit about that and see if she can get any more granular on that particular statement. But she also said that Brian Kidd, a former federal prosecutor who served under Jack Smith, at the Justice Department, said, you can tell this is moving quickly, and that concerns that the appointment of a special counsel would slow down the probe are now clearly unfounded, according to all these sources. So, the documents case is further along to the point where some prosecutors believe they have enough evidence to charge the former president, but there's also lingering concerns from others about bringing such a politically charged case.

And that was always going to be an internal discussion. I'm sure. And I think everything that we've learned about Jack Smith says he tends to lean in and then lean out. Yeah, I have no question. I have no concerns. I should say that he's going to lean forward. If he thinks the facts are there and the laws on the side, he's going to push to do something.

You know, the generalized concern that, oh, no, it's a, it's a controversial case. It's a political case. Maybe we shouldn't do it. That's always hovering over these public corruption cases. This being the granddaddy of all public corruption cases. It's bigger here than anywhere. I can tell you that in my own experience, I faced a lot of that with the work that we were doing that ultimately led into the Russia case.

And certainly on the now ever embattled decisions around the Carter page, FISA, you know, and my argument back to DOJ in those days was if we have a concern, we have information that a crime may have been committed, we have enough information to go to a court and press for a search warrant of any sort, in that case it was FISA, but you could say the same for a regular search warrant. And we choose not to do it because the subject is a high ranking political figure, then we have politicized our work. We have politicized our judgment. We've created a separate class of people in this country who aren't subject to the same justice that the rest of us are. And that, to me,

is the colossal failure. Ringing a case that impacts a political person is not politicizing your work. It's doing your job if you think that that person is committed to crime. Yeah, and we're already far past that point, even with just Merrick Garland, who, you know, on the Department of Justice under on your Merrick Garland had requested way back in May, that certain tranches of emails from Kukowski and Eastman, you know, they wanted to prioritize emails and communications with representatives, Scott Perry, a Republican congressman. But I would assume that with that evidence, they were able to get the search warrant to

seize his phone. So we already know that even before Jack Smith got there, that this Department of Justice is not shy about executing search warrant. That's right. Smith got there that this Department of Justice is not shy about executing search war and so I'd be having probable cause for crimes on phones of people who who are elected officials. There you go. There you go. Now we just need to wait and see what happens. I just wait and see. If those indictments start raining down in weeks, the show is going to blow up my friend. We're right. I have to start sliding in some special special issues or. Yeah, we'll have to bring back the fantasy indictment league. That's right. That's right. All right, we're going to talk

to Zoe Tillman. She's a senior reporter at Bloomberg News about her breaking news that two more people have been brought on to the team by Jack Smith. We're going to do that right after this break. Everybody stick around. Hi, I'm Moji L. O'Reilly from the Feminist Buzz Kills Live pod. The only podcast that helps you navigate the news in this post-prow anti-abortion hellscape. Each week with co-host Marie Khan and Liz Winstead, we dissect all the news from that sketchy intersection of abortion and misogyny with providers and activists working on the ground. The cherry on top is we have amazing comedy guests who help us laugh through the rage.

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through. Yes. So come, join us with the journey as we figure out what it means to be all-thinetic together. So, Renato, do you still have your own podcast? Yeah, it's complicated. What's so complicated about a podcast? That's the name of the podcast, remember? Oh!

Will you still be exploring topics that help us understand the week's news? You bet, but we'll have a new name because we're going to be working together to explore complicated issues that are done in the news. Working together? Yeah, you're hosting it with me, remember? Oh, right. Wait, does that mean our podcast is going to have a steam op segment?

Let's not get carried away. But we'll discuss hot new legal topics. So check out our new episode, Coming Student to Everywhere You Get Podcasts podcasts as well as YouTube. All right everybody, welcome back. We are happy to be joined today by somebody who's breaking all kinds of special council news. She's a senior reporter for Bloomberg News. Please welcome Zoe Tillman. Hi, Zoe. How are you? Hey, I'm good. Thanks for having me on.

I am so excited to talk to you. And I know Andrew is too. That's right. Because you've come out with some really meaty reporting here in the last few days. We were Andrew and I were like during the beginning of the week. Well, is it just all Kevin McCarthy's of these are news? Or do we have? Do we have something to go to run with? And you have provided that.

The first story I want to talk to you about that you put out in Bloomberg is that Jack Smith has brought on two new prosecutors. We know early in the year, maybe around January, he brought on Wyndham and then he brought on another guy at the end of the summer. Now he's brought on these two additional prosecutors and they are anti-corruption specialists. Can you tell us a little bit about your reporting and what you found out?

Yeah, so what we've confirmed is that he's brought on two lawyers, one who's a veteran career prosecutor at the Justice Department, Ray Holzer, decades at DOJ in the public integrity section. He's led that unit in the past and critically worked with Jack Smith when Jack Smith was in charge of that office. And the other new addition is The other new addition is someone from outside DOJ, it's sort of a rare big law entry into the fray of David Harbock, who like Ray Holzer worked in the public integrity section with Jack Smith and worked with Jack Smith in the hagg

when Jack Smith was working as a war crimes prosecutor. So two people that he knows, presumably trusts, and who also bring experience, putting together really high profile, public corruption, cases involving very high profile, politically explosive matters, very relevant to the investigations that Jack Smith is now overseeing. So that's what we've confirmed this week.

And Andrew, we talked a little bit about this on a previous episode with some of the, in fact, it was last week's episode, when we talked about Jack Smith's previous work, and some of these names should sound familiar to folks who listen to that episode, including Governor MacDonald and John Edwards, for example. And what do you know about who was working on those cases, Andrew, and then I would probably have a follow-up for Zoe after that. Yeah, sure. So those are, of course, cases that we we think are seminal and Jack Smith's development as a prosecutor and

experiences that we think will likely have some impact on his work going forward and his current assignment. Dave Harbaugh was I think with Jack during that time and had experience on both of those cases. I should also say full disclosure, I know Dave a bit because I we worked together for some period of time at the FBI when he was on Jim Comey staff, very super smart guy, very dedicated. Also in great interpersonal skills, really outgoing works really well in a team environment. So I think Dave is clearly a big plus to the team. And then Ray Holzer, who I do not know personally,

I'm not sure, I've probably met him somewhere along the way, but I've never done a lot of work with him, but I know that Ray had a big role as, I think first a deputy chief at Penn, the public integrity section during the Melinda's case. And then if I have my timing right, I think he probably followed Jack Smith as acting chief of pin when Jack left. And then I think got that role permanently for some period of time.

I know that that Ray has from the experience on the Melinda's case. I know, I mean, that was a very, very aggressively prosecuting case. I've heard that it is a case that had great support from the front office, and particularly from Ray and Jack, with some pretty controversial decisions to pursue information through search warrants and subpoenas to bring congressional staffers in front of the grand jury. So what would have been hard controversial decisions, you know, those decisions consistently went in the, in lean forward kind of direction. Ultimately that case kind of fell apart. I think they got a mistrial after no verdict

from the jury. And then DOJ ultimately decided not to retry the case. They're probably still inflamed opinions about that to this day, but nevertheless, a lot of pretty aggressive work in both of those cases. I also think it's kind of interesting, Zoe, that it seems like what you see here is Jack Smith trying to surround himself with guys that he knows and trust from his prior work at DOJ, people who is skills he relies on, but I would guess also people who he had worked

closely with at the past, and as used to kind of relying on for consultation and advice and all that stuff that you need when you're in a position of leadership and trying to get your head around tough decisions. Yeah, no, that's exactly right. You know, what made Jack Smith's position so different from Robert Mueller's position when he was brought in to lead the Russian investigation, as you all know, is that, you know, that was a very, that was in the early stages, and Bob Mueller could sort of build a team around him, and he picked people from big law, from across the Justice

Department, you know, it was a lot of starting from the beginning. Jack Smith is coming in to a pair of investigations that have been going on for months, you know, really two years since January 6th, literally, to the day. So he's not from scratch and he's coming in to teams that have been doing this work for some time. So, you know, I think the expectation was that he would continue with a lot of the same people and not try to reinvent the wheel two years into the January 6th investigation and some period of time into the Mar-a-Lago documents case. But I think there was also an expectation that he would want to bring in at least some people that he wanted to work with and or saw a need to add or you know, brought strains that he was comfortable with or as you said, you know

just knows and trusts to make really important decisions so you know, I don't there was no expectation that he would be bringing in a whole new crew of people but you know if you when I was reaching out to sources or you know over the past few weeks out to sources, you know, over the past few weeks, you know, the guidance was, look at people who were in the haggle with him, look at people who were in public integrity with him, you know, it's likely he's going to pull from those pools and voila, here we are. Yeah, sure enough, that's how it worked out. Yeah, and are these, are these trial prosecutor guys or are these putting a case together guys? You know what I mean?

You know what I mean by the difference in that? Well, it's really, I mean, it's a great question because Ray Holzer comes to this with direct immediate experience dealing with Donald Trump world. He's been a prosecutor involved in the contempt of Congress case against Peter Navarro, who was deeply involved in sort of pre-election post-election activities and has been in the courtroom litigating before the judge. He wasn't very active in court for a number of years. I think more of a behind-the-scenes leadership role as far as I can tell, but it is it was notable, you know, to look at that track record and see that, you know,

he's been in the mix when it comes to Trump and and and active prosecution. Harbock is he was in a white-collar defense partner role at Elelvinny and sort of not so much in the mix recently, but at public integrity was in the courtroom trial attorney experience. I think they both bring both high level planning, strategizing experience as well as, you know, they've been in the trenches and they've tried these types of cases under a very bright public spotlight before. And yeah, and let me ask you about the Navarro case really quick because there was something really interesting, a little blip that may just be a blip, but right before he was arrested or indicted for contempt of Congress, there was a subpoena that went out from the Department of Justice to him about his communications with Donald Trump. And from what it seems like happened, they were like, don't tell anybody about this. He of course went out and told everybody about it about this particular subpoena, but

it didn't seem like a subpoena had anything to do necessarily with the contempt case and had more to do with communications that he case and had more to do with communications that he may or may not have had with Donald Trump directly. And I'm wondering if the new prosecutor that Jack Smith has brought in knows anything or was part of that. And if that is continuing to be part of this case, or if that was, in fact, part of the contempt case, because, you know, as we know, in the ban in case, the DOJ wanted communications with his lawyer Costello, because one of Bannon's defenses was my lawyer told me not to show up.

So maybe there was some sort of communication they were looking for between Donald Trump and Navarro, where Trump advised him not to show up or exerted some sort of executive privilege and they were looking for some Brady material. I'm not sure, but do you know anything about that, that subpoena, because it sort of flew under the radar? Honestly, I don't and you know, I think sort of figuring out exactly what is under Jack Smith's purview right now is a really big open question, you know, he's got a pretty broad mandate on January 6

separate from all the individual rioter cases but and you know the authorizing order indicates, you know, or other crimes uncovered in the course of whatever the language is. You know, if they see something, they can say something as they're digging and whatever gets pulled in that was compiled that might be relevant, leaving up to his appointment. And you know, he could certainly, as Mueller did, go back and ask for authority to expand his jurisdiction over matters that might be relevant or an interest. So, you know, and the Navarro trial hasn't happened yet,

so we don't sort of know where that's headed and what might come out in court. So I think that's know where that's headed and what might come out in court. So I think that's that's one of many on answer questions. And you can certainly you can certainly imagine that cases like the Navarra case would pretty clearly fit within the current scope of his mandate, but there are also cases that if you're looking to kind of clean up and narrow down your workload, there are things that you could cleave off to have handled by other prosecutors out of the same office, out of the DC,

US Attorney's Office. So it is kind of hard to keep track of exactly not just what he's doing, but like how he's doing it. Whether he sees all of these things together as one massive investigation into potential criminal activity by the former president and his, um, his staffers and aides and, and advisors, or if he still sees it as two distinct cases, one being Mar-a-Lago and the other being January 6th related. Yeah. And also before we let you go, Zoe, you had another story. And the quote that stuck out to me in this Bloomberg report

that you put out is that the special counsel's office is combing through new evidence along with all the evidence from the January 6th committee. And you say in the article, quote, he's set to make critical decisions about whether to bring charges, possibly in a matter of weeks, according to people familiar with the matter.

And I just wanted to see if it's possible to drill down on that a little, possible charges, or charges possibly in the coming weeks against Trump himself, against people like Walt Notta, maybe smaller fish to try to pressure them to flip on bigger fish. Or, you know, and like, what do you have any more detail about the characterization of those charging decisions? I mean I can I can share what we've reported and what my colleague Chris Dram and I have reported and really not much beyond what we put in the story certainly if

we had more details I would report them in a a heartbeat. But I think there's certainly a lot of speculation. There's a lot of understanding of basic process at the Justice Department. We know that typically you would expect to see someone in a position like Jack Smith's write up a memo to present laying out the case, whether it's a decision in favor of bringing charges, whether it's a decision to not bring charges, they'll make a presentation often in a sensitive

case to higher ups, making their case for whether to make a case. But right now all that I can say is that we've confirmed with sources that there are critical decisions imminent and on a timeline that could be a matter of weeks. Wow, okay, great. Thank you so much for answering. As a best you could, I figured if there were more details, they would have been in the story, but I just wanted to confirm that with you. So I appreciate that. I appreciate your time. Andrew, do you have any additional questions before we say goodbye?

No, other than predictions. I know you hate this when people ask you this question. So I'm going to ask you anyway. Other than decisions, we're not sure which on charging. What do you expect to see? What are you looking to see from the team's work over the next couple of weeks, like the sorts of things that we will see

with court filings or that sort of stuff? You know, I think the big categories of what we're looking for right now are any other signs of investigative process, you know, the round of grand jury subpoenas that went out at the end of the year, was really telling. It told us a lot about direction, focus, priorities.

We got a few names of folks that we didn't hadn't seen before. And whether we get, there's a pending request right now from media coalition that my outlet is a part of trying to get behind very tantalizing hearings that have taken place with the Chief Judge and D.C. Judge Barrel Howell. You know, we know Trump lawyers were at court. We know they went into her office. They're still reporting by other outlets about what happened there. And we're, you know, very good lawyers are trying to argue that the court should make more of that public, you know, very good lawyers are trying to argue that the courts

should make more of that public, you know. So before anything else happens, I'll be very interested to see if the court sort of releases any more information related to that process that's going on right now involving grand jury subpoenas, enforcement of subpoenas, things like that. I try not to make any firm predictions, but those are certainly things I'm looking out for ahead of, you know, the possibility of any kind of indictment. Well, you guys are doing incredible work, and I love seeing the like our pool folks or reporter spotted so and so going into the courthouse. It totally brings me back to my early days of like surveilling mobsters. Like we saw them both pull up at the same restaurant

and went inside, except you guys can't actually send your pool reporter into sit at the next table and over here what they're talking about. So good luck with that, but we will be watching your reporting in Bloomberg and anxiously awaiting developments in the case because, you know, we find it fascinating and so do our listeners. So thanks again for coming in today. It was great to talk to you and good luck and Godspeed going forward. Thanks. Yeah, everybody make sure to follow Zotel Zoe Tillman on these socials because you don't want to miss these stories when they drop. That's right. I promise more, you know live cafeteria, courthouse cafeteria steak out. That's a really good one. Excellent. It's butter a

carb. I'm getting cheese fries. What a friend. Thank you so much. We really appreciate you. Senior reporter for Bloomberg News, Zoe Tillman. We will talk soon. Thanks. All right. While that was such good information, Andrew, she's just such a great reporter. It was excellent to have her here, to have her explain some of those scoops to us. And before we get out of here today, there is a little bit of a document's case,

hmm, hiccup, thing that, it did make a lot of a problem. It's a document kerfuffle, I think. It's a, it's a bruhaha, tomfooleryery shenanigans. And if everyone would remember, we reported on this in one of the earlier episodes of Jack where Jack Smith or the Department of Justice filed a motion for contempt against the office of Donald John Trump because he had not yet attested that all classified

documents had been handed over. And it seemed like Jack Smith has had enough of your shit, basically. And so he filed a contempt motion saying, hold them in contempt, make them appoint a documents administrator and, you know, have an attestation that it doesn't say, you know, to the best of my knowledge, hopefully this is true, you know, without sort of the, the, the smushy language, to file it a true attestation to the court that all classified documents have been handed over. And the reporting in the mainstream media was that the judge, Judge Barrel Howell, denied that motion. And I said, ah, did she deny it? Or has she not, you know, it seems like there's still,

you know, cause what it felt like was she was like, go forth, do more due diligence, try to get the information, try to figure it out yourselves, and then come back to me. That's what it felt like. And now we have this confirmation of that inkling that you and I had,

that it didn't seem like she would just completely shut it down CNN is reporting or no, excuse me, it's Alan Foyer at the New York Times that the contempt motion was not Decided so Andrews she didn't deny the motion and here's the quote at a court hearing held behind closed doors last month Judge how put off ruling on the government's contempt request, the judge has still not issued a decision according to people familiar with the matter. So this is brand new reporting that we could just got this week. Yeah, I love this because it shows you it's like it paints the, it paints the prosecutors really in the dog with a bone kind of light, right? They will not let this thing go. And judge how has had an opportunity to just dismiss it and walk away. But she hasn't done that. So there's a couple of things that

really jumped out to me here that I think are interesting. The New York Times, the article that you're referring to points out that in October, the time that previously reported that in October, a top DOJ official told Trump's legal team that the department believed the former president still had classified docs in his possession, even after the Marlago search. This is kind of amazing. The idea that DOJ would go to the subject of the search and say, we think you still have more. Well, if you think they still have more, what you would normally do in that

circumstance is build your probable cause, go back to the judge and execute a search warrant. So, the fact that they actually engaged in this kind of half measure at that point is really confounding to me. I've never seen that before. I think it also, now that we know that that expression of their belief was never satisfied, because here we are months later, they're still fighting about it in court, to the point that DOJ is now demanding, really, that the Trump team reveal the identities of the two private investigators who they hired to go out and supposedly search all of the Trump properties that could possibly have had classified documents. We know that the government, DOJ was not satisfied with the result of that supposed search, which was the revelation of two

additional documents. But this kind of shows you why the half measure is not a good thing. There is a huge difference between searching yourself or even hiring a law firm or private investigators to come in and look at some areas that you grant them access to, you who is also the person paying their bill. There's a big difference between that and an actual search warrant from the FBI. The FBI comes in with a warrant, they have the lawful authority to look in any place or any container that in which the documents or articles, whatever it is, evidence that's described in the warrant, could possibly be hidden or be concealed. And they will tear your house down.

I know this from personal experience. I have done this many times before. It's a brutal and disturbing process, depending on how invasive, depending on what they're looking for and where that could be. But it is the only way to walk away, confident that you have found everything that's evidentiary in nature. So that really jumps out to me here. And the other thing you might ask Allison is like, what's the big deal about having the names of the private investigators? Well, yeah, because I wanted to ask about that because that was something else that just

happened this week. This is new breaking news that the the DOJ, because you know, the judge compelled, barrel howl compelled Trump to hire some people to search. That's right. That was her order. And they did. And then the DOJ filed a motion to get their names. And then the Trump lawyers came back and said, no, we'll make them available for questioning,

but we don't want to give their names. And the win that DOJ got that's the headline of this article is that Judge Howe said, no, I am compelling you to hand over those names. And I was wondering what's the difference between bringing them in for questioning and not providing their names and providing their names. It seems like it's a step towards something bigger. Well, it's a step towards something different, right? If you just are presented with two unidentified people who supposedly searched these properties, you could ask them questions about where did you go and when did you get there and did you

have the key to yourself and you had to wait for someone else to let you in all these kind of mechanical questions, but just around the search itself. If you have those people's identity, you can actually do some research into their backgrounds. Who are they? Who do they work for? How much do they get paid? Have they done this ever before? Do they have experience that would make them better or worse at this? So did they work at the cyber ninjas before? Exactly. Have they been found to have misrepresented things in court before? Do they have felony fraud convictions that would give you reason to doubt their

character or truth, truth and veracity? So there's all kinds of very relevant things that the government believes they're entitled to know about these people. So they can assess how well or not well this search was conducted. And you really, you really tying the government's hands behind their back by not providing the identity. Now that the Trump lawyer said, oh, we don't want to provide their identity because we're afraid you'll leak that to the press, which seems pretty weak to me. I don't, you know, I, I don't think like you're basically saying, oh, we think

you're going to do something improper, which is a little bit overboard. And the other thing is if these are professional investigators who do this for a living, let's hope they were, or are, they really shouldn't be that worried about being known for having been employed on a high profile case. You know, yeah, would it maybe subject them to criticism, but it also might bring in a lot of business. This is the work that they have chosen to do for their and their careers. Like it's not typically something you would hide. But DOJ could also redact their names in any public facing documents for privacy purposes, which is what I think they would do.

You know, they're like, we don't want this so that we can, we're not Donald Trump. We don't want to release names to have people attack them publicly. We need them for, you know, criminal investigatory purposes and judge Barrel Howell agreed and said you will provide the names. And I assume that if the DOJ, if there's any papers that come out about these, you know, two investigators,

that unless they're caught up in the crimes themselves, their names will be redacted. That's right, that's right. And at the end of the day, it's another indication that these two sides are very far apart on this case. There's no cooperation That's right. And at the end of the day, it's another indication that these two sides are very far apart on this case. There's no cooperation going on here.

They're fighting over everything. And DOJ is really dug in. They are fighting every point here, every, you know, every ruling that they think is not in their favor. They're going after it. So I think it's a good sign, generally, for the tenor of the prosecution. Yeah. And they're fighting it fast, too. We've seen a lot of, for example, executive privilege

arguments. I know Zoe Tillman was talking about some of these, you know, these behind closed doors filed under seal cases that are now up to the DC Circuit Court of Appeals that have something to do with, you know, the Trump lawyers and with the Department of Justice. And we don't know exactly what they are because they're under seal. And no one's answering questions about them. But they've been going extremely fast. There's new docketing right now showing that there is a, you know, there are appellate arguments that are due January 21st and some other ones that are due in the beginning of February.

And so it seems like these are on extremely fast tracks. They fast tracked Mark Short and Jacob Engle. They fast tracked the Pats, Cipollonian Philbin, and they got those privileged battles resolved in a very, very short amount of time. But that does add to the length of time it takes to prosecute these cases when you have recalcitrant defendants who are gonna sue an appeal at every turn,

but it also helps you, I think, in the final stages of prosecution, when you've had these things resolved by the Supreme Court or an appellate court or the Supreme Court refuses to hear them, then it's already been decided at that level and that kind of kills a lot of appeal, their Supreme Court refuses to hear them, then it's already been decided at that level. And that kind of kills a lot of appeal, like opportunities from a convicted party.

It should. It really should. But, you know, strategy one for the Trump legal team on any legal matter is delay. Strategy number two is delay. And number three sounds exactly the same. So they, this is how they roll. And I, you know, I'm sure Jack Smith and his team know that this is what they can expect on everything. And there is no really acceptable way for them to react to that other than to fight, keep

the petal to the metal, go as fast as you possibly can. And that's, you know, that's and that's where they are. Yeah, and before we put this particular story to bed and say goodbye until next week, there are a lot of folks are worried that in the Mueller investigation, it was next to impossible to get the evidence needed to obtain and maintain a conviction

because of the obstruction of people like Manafort and people who like Bannon, people who weren't willing to be forthcoming and hid documents and destroyed evidence. And there's a lot of that going on in these trump cases that, and I think people are worried about how much that obstruction could actually prevent charges from being prosecuted. But I feel like Jack Smith is a little more forward leaning than Bob Mueller might have been. I think Bob Mueller may be able to have been a little more conservative. And he was also the sitting president at the time. So, you know, what are your thoughts on that kind of obstruction? Having to, you know, could strip away evidence? There's no question that's going on here.

It went on in the Mueller probe. I mean, look, the January 6th committee dealt with, they called it out in their report as well. There are people that came in who they came right out and said they found them to be not credible in terms of their denial of having recollections of things that, you know, any reasonable person would have remembered something about it. Mueller report called out some of the witnesses that you just mentioned as being blocking the special counsel's work through not forthcoming testimony and also the use of things that

can crypt at apps and keeping their communications in a place where the team couldn't get to them. They can expect that. I think they have a team that does, they have a prosecutorial team that does expect that is doing everything they can to counter those efforts with aggressive litigation. And that's really the government's only recourse. Jack Smith promised that when he took the job

that they would move forward with absolutely no delay. And that's what we've seen so far. So we can only, you know, keep our fingers crossed that they're, they don't run out of energy or support from the A.J. And I don't see either of those days, those two things happen. Yeah, yeah. I mean, either. All right.

Well, thank you. And thanks to everybody for listening. And thanks to our patrons. We appreciate you. If you want to become for listening. And thanks to our patrons, we appreciate you. If you want to become a patron and get this show ad free, you can go to patreon.com slash muller she wrote and sign up there at the $5 level. You get Jack and the daily beans.

There you go. Deal, what a deal. What a double. I gotta have you on the daily beans soon, my friend. You know where to find me. I'm right here. I know where you work. This has been a great show. I thank you again to Zoe Tillman, Senior Reporter Bloomberg News for joining us. I've been Allison Gill and I am Andy McCabe.

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